In-house reporting focus of concern

Whistleblowers’ legislation raises some fears for unions, writes Stephen Rogers

TRADE unions initially welcomed the white-collar crime provisions contained in the Criminal Justice Act 2011 because workers were at last being given the opportunity to blow the whistle on illegal practices within their workplace.

Finally, employees who had what they felt to be legitimate concerns over the financial activities of their bosses or their colleagues could bring those concerns to the relevant authorities.

The new legislation could not have come at a more opportune time. The financial sector was under immense public scrutiny. People wanted answers as to who was responsible for the mess the economy was in and whether anyone within the sector had engaged in criminality in the run-up to the economic collapse.

That was why the legislation was fast-tracked through the Dáil, giving authorities better scope to investigate allegations of impropriety.

Unions, in particular, welcomed the fact that an employer who penalised someone for blowing the whistle in any way could face up to two years in prison and the whistleblower could sue for damages.

However, deeper examination of the implications of the whistleblowing clauses of the legislation have raised significant concerns, particularly as regards two aspects.

Firstly, the legislation has created an offence of failing to report business and corporate-related crimes. Those who fail to report face up to five years in prison.

Secondly, it has also made it an offence to make a “reckless” report.

Esther Lynch, legal affairs officer with the Irish Congress of Trade Unions, says there is a deficiency in the legislation as to the parameters for both those clauses.

She says there needs to be a clearer distinction between making a report to gardaí as soon as possible while also ensuring that the report is not “reckless”.

Ms Lynch points out that in most corporate situations it is rare that anyone below the highest echelons will know every aspect of the company’s business. In most cases the lower-level worker might only have half the facts regarding some form of impropriety, yet they will have a real concern about the activities of their colleague, boss or company.

There is a lack of clarity as to how much information the person is required to have before bringing it to the attention of authorities.

Esther Lynch has also sought clarity from Justice Minister Alan Shatter on how in-house whistleblowing procedures will operate.

“It seems that a number of enterprises would like to include clauses that require workers to raise their concerns internally, ie the worker is required to report their concerns ‘in-house’ before they make any report outside the organisation,” she says.

“Unions have contacted ICTU seeking guidance on whether they can agree this type of arrangement. However, it is difficult to know where the balance lies between on the one hand a clear requirement to make reports to the gardaí ‘as soon as practicable’, while on the other it is an offence to make reckless reports.”

She says there is an argument that in-house whistleblowing systems protect the employee from an accusation of making a recklessly false report to the gardaí.

“However there is a legitimate concern that in-house whistleblowing systems make workers less likely to report wrong doing and are in danger of being in breach of the mandatory reporting requirements under Section 19 of the act,” she said.

That section provides that a person will be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in (a) preventing the commission by any other person of a relevant offence, or (b) securing the apprehension, prosecution or conviction of any other person for a relevant offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a garda.

For now, ICTU hopes that whistleblowing legislation being drafted by Public Sector Reform Minister Brendan Howlin will bring more clarity and will offer more clear-cut protection for workers.